David A. Plymyer: Political, Social & Random Commentary

Month: January 2019

Many questions arise from the death of 19-year-old Anton Black at the hands of officers of the Greensboro Police Department on Maryland’s Eastern Shore. One of them is why the Maryland Police Training and Standards Commission certified Thomas Webster IV to be a police officer in Maryland.

Mr. Webster, who is white, was the first officer on the scene of the reported “kidnapping” that turned out to be horseplay between Mr. Black and his 12-year-old family friend, both black. Would Mr. Black still be alive if an officer with a less volatile history than Mr. Webster had been first to arrive at the scene? That question will haunt Mr. Black’s family and Greensboro forever.

Police chiefs in Maryland have varying degrees of skills and experience, especially in towns like Greensboro (population 1,931). Did a system established by state law that is intended to prevent local police chiefs from making hiring decisions that endanger the safety of citizens fail? If so, why?

We’ll never know if another officer would have done something differently that avoided the death of Mr. Black. We can, in my opinion, conclude that Mr. Webster never should have been certified as a police officer in Maryland and making decisions about the arrest of Mr. Black.

Mr. Webster was on the Greensboro force less than six months at the time of Mr. Black’s death. But it was not his first job as a police officer.

In 2015, Mr. Webster was acquitted of felony assault for an incident that took place in 2013 when he was a corporal with the Dover, Del., Police Department. Mr. Webster kicked Lateef Dickerson in the head while he was on his hands and knees. Mr. Dickerson, who is black, was in the process of lying prostrate as commanded by Mr. Webster.

The kick knocked Mr. Dickerson unconscious and broke his jaw. Mr. Webster told a jury that, based on dispatch calls, he believed that Mr. Dickerson was armed and aimed his kick at Mr. Dickerson’s upper body, not his head. Mr. Dickerson was not armed and the kick struck him squarely on the jaw.

Watch the video of the incident. It apparently did not persuade the jury beyond a reasonable doubt that Mr. Webster intentionally used excessive force. It certainly convinced me, after considering his performance evaluations and disciplinary record, that Mr. Webster should have been fired.

Mr. Webster was not fired. He was induced to voluntarily resign from the Dover department by severance payments from the city totaling $230,000. The city paid $300,000 to settle a federal lawsuit filed by Mr. Dickerson.

Thanks to information that came out during the 2015 criminal prosecution of Mr. Webster there was a rare look into the disciplinary record of a police officer. Mr. Webster was hired by Dover in 2005. By the time he was indicted in 2015 there were 29 “use of force” reports in his file. None resulted in disciplinary charges.

A 2006 performance evaluation of Mr. Webster stated: “Officer Webster is very fit and strong. There have been times when he should have attemted [sic] lesser degrees of force to accomplish an objective. He has been spoken to regarding this issue.” A 2012 performance evaluation noted: “PFC Webster has made some very poor decisions and he obviously does not think of the consequences of his actions.”

For those who haven’t read hundreds of performance evaluations of police officers, let me translate: “Mr. Webster is a tough guy with questionable judgment who tends to needlessly rough up suspects, and I am worried about what he might do in the future.”

The problems with Mr. Webster’s performance apparently persisted for at least six years. Mr. Webster’s supervisors clearly saw signs of worse trouble ahead. Their concerns were justified.

In 2013, there was another incident before the one that led to his indictment. Mr. Webster and another officer took two drunken men from a 7-Eleven in Dover to a rural area left them there despite one individual’s request to be taken to a hospital. The two men were retrieved by Delaware state troopers after a neighbor called about them.

Mr. Webster was suspended for 10 days and placed on disciplinary probation for his actions. He was on that disciplinary probation when he kicked Mr. Dickerson in the head.

The 2015 trial of Mr. Webster drew national attention. The decision by Greensboro Police Chief Mike Petyo to hire him last year caused an uproar on the Eastern Shore. There is no way that the Police Training and Standards Commission was unaware of Mr. Webster’s background when it certified him to be a police officer in Maryland. Indeed, Mr. Petyo was obliged to bring it to the commission’s attention.

State law establishes a comprehensive process by which individuals, including individuals who were police officers in other states, are certified to be police officers in Maryland. In my opinion, the law gave the commission ample authority to deny Mr. Webster certification because his record demonstrated that he had not “displayed the behavior necessary to perform the duties of a police officer.” Not even close.

The law is only as effective as the people administering it. Like many state agencies, the Police Training and Standards Commission has been deprived of adequate resources. The commission’s regulations contain detailed standards individuals must meet. If the end result is that individuals like Mr. Webster get certified, the regulations aren’t worth the paper they’re printed on.

To his credit, Gov. Larry Hogan demanded that Greensboro officials be more forthcoming about the unfortunate death of Mr. Black. He also should demand that the Police Standards and Training Commission explain why Mr. Webster was certified to be a police officer in Maryland. And if the governor doesn’t do so, the General Assembly should.

[Published as guest commentary by Maryland Matters on January 30, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Rabbi Menachem Rivkin and Friends of Lubavitch, Inc. (Lubavitch) have tried to convince Baltimore County officials that the expansion of the Towson Chabad House was nothing more than a “residential addition.” They now want to try to persuade a federal court that the structure is something else: a place of religious assembly.

They and other plaintiffs claim in Friends of Lubavitch et al. v. Baltimore County et al., that the court-ordered demolition of the building violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). Rabbi Rivkin and Lubavitch may have compromised that claim by their own actions, actions that the Baltimore County Board of Appeals described as dishonest.

Chabad House is an outreach center for Jewish college students located in a residential community a few blocks from Towson University run on behalf of Lubavitch by Rabbi Rivkin. Outreach activities initially took place in the 2,200-square-foot home of Rabbi Rivkin and his family owned by Lubavitch, a Hasidic organization.

In 2016, Lubavitch applied to Baltimore County for a permit to build a 4,400-square-foot “residential addition” to the house, ostensibly to accommodate the rabbi’s expanding family. Neighbors protested that the structure was intended to serve not as a residence but as a community center, a use requiring a zoning special exception.

The county Department of Permits, Approvals and Inspections referred the question of whether Lubavitch was entitled to the permit to a hearing officer. The hearing officer held that the question depended upon the ultimate use of the structure, an issue he said he could not decide.

The neighbors appealed the hearing officer’s decision to the board of appeals. For some reason, the county issued the building permit while the appeal was pending. And Lubavitch, despite being apprised of the risks, began construction.

Members of the appeals board minced no words in determining that the building permit was “dishonestly procured” and that the claim that the structure was merely an addition to a residence “was not credible.” The majority found that Lubavitch “had acted in bad faith,” and that Rabbi Rivkin’s testimony “was not particularly credible on contested points.”

The majority described much of Rabbi Rivkin’s testimony as appearing “to be coy and disingenuous given all the objective circumstances.” Among those circumstances was the fact that the addition has a dining room capable of seating over 120 guests served by a commercially-outfitted kitchen, a cloak room and separate powder rooms for men and women.

The board concluded that the building was not a residence and was being used as a community center. A community center is a commercial use and is not permitted as a matter of right under the property’s zoning.

Place of religious assembly

Assuming that their RLUIPA claim has merit, Lubavitch and Rabbi Rivkin should have sought approval of the addition as a place of religious assembly protected by RLUIPA and created the record accordingly. Instead, they tried to convince the board of appeals that the addition was a residential use. Lubavitch did not seek judicial review of the board’s decision.

The demolition order arose out of separate litigation not involving the county. Neighbors of Chabad House sued to enforce a building setback requirement contained in a private covenant binding on the property.

The board of appeals decision came back to haunt Lubavitch in the setback case: Baltimore County Circuit Court Judge Kathleen Cox ordered Lubavitch to raze the structure rather than move it back from the street. Her order is on appeal to the Court of Special Appeals.

Here is the problem that Lubavitch created for itself: The demolition order is based on a decision by the board of appeals in which, because of choices made by Lubavitch and Rabbi Rivkin, the status of the addition as a place of religious assembly was not raised or decided. The RLUIPA claim may not be ripe, and the federal court could refuse to intervene on that basis. That would be the just outcome.

It is the neighbors of Chabad House who are the victims in this case. They already were in litigation over the building for three years when the federal RLUIPA complaint was filed.

In my opinion, Lubavitch and Rabbi Rivkin had the chance to pursue their claims properly and blew it. It is time for this case to end.

[Published as guest commentary by the Daily Record on January 25, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

As Chair of the Public Safety Committee of the Baltimore City Council, you take an active and constructive interest in the affairs of the Baltimore Police Department (BPD). You long have advocated for a return of the BPD to “city” control.

You and I both know that a full transfer of power is not going to happen anytime soon. In the meantime, there are things that the city council can and should do; the absence of complete control over the police department is no excuse for doing nothing.

You may have seen my op-ed that was published in the Baltimore Sun describing how the senators and delegates that represent the residents of Baltimore could open the disciplinary records of officers of the BPD to reasonable public scrutiny. In my opinion (and in the opinion of many others), full trust in the BPD will never be achieved until that is done.

What can the council do about that? Answer: Pass a resolution supporting introduction and enactment of the local law described in the op-ed. For one thing, such a bill will not pass without the support of city officials. There is a link to the bill that I drafted at the end of this letter.

Generally, city or county council resolutions asking state legislators to introduce specific legislation are about as welcome as suggestions by members of the General Assembly on which bills a local council should pass. But, as you know, the situation here is a different one.

The city council has a profound interest in an agency that, in every chartered county and other municipal corporation, is locally-controlled. It hardly is an intrusion upon state legislative prerogative for the council to express its views on such an intensely local concern as policing.

I am going to digress and vent a bit on what I believe will be the barrier to introduction of the bill I proposed. In my opinion, there are too many legislators from the city, both on the city council and in the General Assembly, who are more interested in avoiding blame and adverse political consequences than in accepting the risks necessary to get something done about the BPD. It is safer to point fingers at “Annapolis,” the mayor, or elsewhere than to take any sort of initiative.

Have you heard any discussion among your counterparts in the General Assembly from the city about the possibility of a public local law introducing some sunshine into disciplinary system of the BPD? I bet that you haven’t, and I bet that the reason is that they don’t want to stick out their necks. A lot of talk and political grandstanding goes on, but little else.

Not that the city council has been much better in the political courage department. In fact, among the rumblings one hears about the reluctance to turn full control of the BPD over to the city are comments about the council’s track record of not exercising the power that it does have.

I saw that first hand with the council’s reticence to exercise its control over the collective bargaining process in a manner that might offend Lodge 3 of the FOP. Council members, including yourself, told me that the council lacked the power to end the ridiculous impasse over the BPD patrol shift schedule. I wrote a number of op-eds pointing out that the council did have the power to end the impasse, including an op-ed that appeared in the Baltimore Brew.

After the op-ed was published by the Brew, I was informed by a city official that a member of the city council had a bill drafted that was “inspired” by the op-ed. The bill would have permanently removed the subject of shift schedules from the scope of collective bargaining in the city.

The draft bill was dated October 29, 2018. Five days later, the leadership of Lodge 3 announced that it reluctantly had capitulated on the issue of changing the 4×10 shift schedule:

“While our members agreed that this proposal [returning to a 5×8 shift schedule] was less than ideal, the alternative to acceptance was dismal, at best. Instead they made the hard choice to preserve our contractual rights, going forward.”

Was the timing a coincidence? Of course not. The union agreed to the shift schedule change while still able to get something in return for its concession. Had the subject of shift schedules been removed from the scope of collective bargaining, it would have lost all its value as a bargaining chip. One shot by the council over the union’s bow and the impasse ended.

The council allowed the impasse to continue for almost three years, costing the city millions of dollars. Council members like President Jack Young and Ryan Dorsey took occasional verbal pot shots at the FOP for its alleged intransigence, but that was all part of the game that it is run on Baltimore citizens by the city’s politicians: Point fingers at someone else and hope that citizens don’t catch on.

In summary, Councilman Scott, I urge you to focus on what you can do, not on what you can’t. If the senators and delegates that represent city residents do the same, some very important things can be accomplished. One of those things is bringing a reasonable amount of transparency to the BPD’s malfunctioning disciplinary system.

Senators and delegates who represent Baltimore residents in the Maryland General Assembly talk a good game about restoring the public’s faith and confidence in the Baltimore Police Department (BPD). If they were serious about it, however, they would sponsor a local bill this session lifting the shroud of secrecy under state law that protects the disciplinary records of BPD officers from public scrutiny.

It is that shroud of secrecy that allowed police misconduct and outright corruption within the BPD to flourish. Bad officers who should have been fired weren’t. Sometimes it was because of a disciplinary system heavily weighted in favor of accused officers, sometimes it was because of managerial indifference or worse. Eventually, there were so many bad officers that the situation spun out of control.

Corruption was a cancer that metastasized because the public was kept in the dark. Police union officials will tell you that the reason the law secretes the results of disciplinary actions is to spare accused officers from embarrassment. That is not true. The reason is to keep citizens from finding out about too-lenient discipline and demanding reform.

Ideally, reasonable transparency of disciplinary records should apply to all police departments in Maryland. Police officers, unlike other public employees, are empowered to use force to place citizens under arrest and restrain their liberty. Their testimony can result in searches of homes and send people to prison for years. With such extraordinary power should come commensurate accountability.

It now appears that a statewide bill is not going to happen, however, because the political support is not there. And, in all fairness, Baltimore is where the crisis exists. The collapse of discipline in the BPD is primarily a Baltimore problem, and it is reasonable to expect elected officials who represent the citizens of Baltimore to take charge of trying to fix it.

Unlike the police departments of counties and other cities, the BPD is a state agency. The General Assembly, rather than the City Council, enacts the “public local laws” that govern the BPD. The statute that prohibits public disclosure of police disciplinary records is known as a “public general law,” applicable statewide.

In a 1989 case, the Maryland Court of Appeals stated that the General Assembly can make an exception to the provisions of a public general law that applies to the BPD as well as to other police departments by enacting a public local law applicable only to the BPD. That is of enormous practical significance.

By custom, a local law is subject to “local courtesy.” That means that enactment is all but assured if the law has the support of the senators and delegates who represent the city or county. It would be an unimaginable slight to the city if a local bill sponsored by city senators and delegates that only affected the BPD is defeated, especially if city officials endorsed the bill as an important step in restoring the confidence of city residents in the BPD.

I drafted a bill allowing public inspection of certain disciplinary records of BPD officers to try to get the ball rolling. If interested, legislators may contact me at the email address listed below and I will send them a copy. Free of charge.

Here’s what transparency for Baltimore police discipline would mean

The bill limits public inspection to complaints of dishonesty or untruthfulness and physical or verbal abuse of citizens. Those are the types of misconduct most relevant to citizens’ interests in holding the police commissioner accountable for ensuring that officers perform their duties fairly and justly. Other disciplinary matters would remain confidential.

I have no pride of authorship, and I am sure that the General Assembly’s bill drafters will have their own ideas on how such a bill should be written. But I wanted to minimize excuses for not getting anything done this session by starting the drafting process.

There has been a tendency among legislators who represent city residents, both in the General Assembly and on the City Council, to try to duck responsibility for repairing the BPD. Well, adding some transparency to disciplinary actions taken by the BPD is something that the senators and delegates who represent Baltimore citizens can do.

They don’t need the governor, and they don’t need the leaders of the General Assembly. It is time to stop waiting for help and do something. If the senators and delegates from the city join with city officials in seeking enactment of this legislation, they should be able to get it passed. In any event, there is no excuse for not trying.

[Published as an op-ed by the Baltimore Sun on January 22, 2019 but not posted to my blog until April 13, 2017. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

If the city and state are betting big dollars, choose the project with the best chance of truly helping Baltimore.

Decisions must be made by state and local officials on what to do about the Howard Street Tunnel and the Pimlico Race Course, historically two places central to Baltimore commerce and culture – only one of which has a future.

The 123-year-old tunnel is an important part of Baltimore’s legacy as a thriving Mid-Atlantic rail hub and port city, a continuing role we must strengthen. Sadly, the 148-year-old Race Course is now just a reminder of its more storied past.

The reconstruction of the Howard Street Tunnel is a deal that Maryland Governor Larry Hogan, who pulled the plug on the Red Line and State Center, must get done.

If he fails to close that deal, he will cement his reputation as the governor who let down Baltimore – and Maryland – when they needed him most.

DRONE RACES? THAT TELLS YOU ALL THAT YOU NEED TO KNOW ABOUT THE ECONOMIC VIABILITY OF REBUILDING PIMLICO.

Owned by CSX Transportation, the tunnel carries trains to points south and west from the Port of Baltimore. Its inability to accommodate double-stacked containers, which now account for approximately 75% of intermodal shipments, has put the port at a competitive disadvantage.

The estimated cost of increasing the height of the Howard Street Tunnel to allow passage of rail cars with double-stacked containers is $445 million. CSX recently returned to the table with an offer to contribute $91 million toward reconstructing the tunnel, down from its $145 million offer in 2016.

Anticipating $155 million in federal funding, that means Maryland’s share would be $199 million. That’s $54 million more than the state said that it would contribute in 2016.

CSX’s opening gambit won’t be its final position, however. Governor Hogan needs to put his shoulder to the wheel and strike an agreement with CSX.

Tunnel Payout: 7,800 Jobs

Unlike other projects suggested as stimuli for the region’s economy, the benefits of the tunnel expansion are not speculative. State officials report that the port is responsible for nearly $3 billion in personal wages and salary and more than $300 million in state and local tax revenues.

The port generates about 13,650 direct jobs, with about another 114,000 jobs linked to port activities. Estimates are that expansion of the tunnel would add as many as 7,800 direct and indirect jobs.

THE PORT SAW AN 8% INCREASE IN GENERAL CARGO AND A 14% INCREASE IN CONTAINER BUSINESS LAST YEAR.

Just as importantly, expansion would maintain the port’s competitiveness. The widening of the Panama Canal to allow the transit of larger container ships, completed in 2016, will increase double-stacking even more and adds to the urgency of expanding the tunnel. Business lost to ports like Norfolk or Miami is not readily recovered.

The port is currently thriving, and saw an 8% increase in general cargo and a 14% increase in container business last year. The city and state can ill afford to see that trend reversed.

Racing Days are Over

Ironically, after the news broke that CSX had renewed its interest in expanding the Howard Street Tunnel, the Maryland Stadium Authority issued a report stating that it was impractical to restore Baltimore’s dilapidated Pimlico Race Course, home of the Preakness Stakes.

The report recommended that Pimlico be demolished and rebuilt at an estimated cost of $424 million. It is a project to which no taxpayers’ money should be committed even if it means that the Preakness moves out of the city.

Governor Hogan has echoed the popular sentiment that the Preakness Stakes belongs in Baltimore. Trying to restore Old Hilltop to its past glory for the sole purpose of keeping one horserace in the city, however, is a sentiment that comes at too high a price.

The stadium authority did not specify how the cost of building a new race course should be allocated among the city, the state and the track’s owner, the Stronach Group. But this much is safe to say: there is no chance that Stronach will want to bear much of that cost.

Stronach wants to close Pimlico and move the Preakness to Laurel Park in Anne Arundel County. While having allowed Pimlico to deteriorate, Stronach invested tens of millions of dollars upgrading Laurel Park, which had 159 race days last year. Pimlico had 12.

The stadium authority recognized that the days of year-round racing at Pimlico were over, and proposed youth lacrosse and soccer games and drone races as activities to keep the racecourse from sitting idle.

Drone races? That tells you all that you need to know about the economic viability of rebuilding Pimlico.

Real Revitalization

None of this is to say that the site doesn’t deserve investment – it clearly does. That 300-acre parcel presents a magnificent opportunity for a project that serves as a catalyst for the revitalization of the surrounding neighborhoods, something that a racetrack has never done – and never will.

City and state money will be needed to redevelop that land once the racetrack is gone. Presented with a sensible plan, most citizens would approve of the spending. Smart leaders should come up with one.

The decisions on the Howard Street Tunnel and the Pimlico Race Course serve as litmus tests for whether city and state officials possess the vision, courage and clear-eyed realism to pull Baltimore back from the edge of an economic and social precipice.

The heyday of thoroughbred racing in Baltimore is over. Heaven help the city if, in the next few years, the same is said about its port.

[Published as guest commentary by the Baltimore Brew on January 8, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Joel Fitzgerald is finished as a suitable candidate to be Baltimore’s next police commissioner. The last thing that a police department desperately in need of reform needs is a person with a reputation as a liar. The department needs someone who is a role model for honesty and integrity.

I will start with the following observation: Lying was an essential ingredient in the formula that produced the corruption and unconstitutional policing that destroyed the Baltimore Police Department as an effective law enforcement agency. Lying by commanders and supervisors about the actions of their subordinates. Lying by rank-and-file officers to supervisors and internal affairs investigators about the actions of their peers. Lying about overtime.

Then of course there was the lying on arrest warrants and search warrants. Lying on police reports and lying in court. Lying, lying and more lying. It seems to be a police department full of liars. How do you change a culture of lying by putting an alleged liar in charge?

The long road back to respectability and public confidence for the BPD requires a police commissioner whose reputation for truthfulness is beyond reproach. The citizens must be able to trust that, whatever happens in the department, they are getting the unvarnished truth from the commissioner. I don’t know how a commissioner who apparently shaded the truth to get the job could possibly fulfill that requirement.

If reports in the media are correct, the Fort Worth, Texas police chief was guilty of grossly inflating his resume. According to those reports, at least two of the claims were outright misrepresentations of the facts: Mr. Fitzgerald’s claim that he initiated “the largest active Body Worn Camera program in Texas” while chief of the Fort Worth police department and “the first active Body Camera program in Pennsylvania” while chief of the Allentown police department.

It doesn’t matter whether these putative achievements were relevant to Fitzgerald’s selection. It matters whether he told the truth about them.

To make matters worse, Mr. Fitzgerald initially resisted public disclosure of his resume. In retrospect, one could conclude that he was concerned about what scrutiny of that resume would reveal. Is the city really going to hire a commissioner who apparently tried to pull the wool over the eyes of the mayor and city council about his achievements?

If Diogenes held a lantern to the face of Mr. Fitzgerald, what would he see? For one thing, I doubt that he would see the face of the next Baltimore police commissioner. I expect Mr. Fitzgerald’s name to be withdrawn from consideration by the close of business on Monday. What a sad, sad chain of events for the City of Baltimore.